In conclusion, it is thought due to Mr. Naylor to say that there is no evidence to raise a suspicion that, if any fraud or illegality was meditated, it was with his knowledge or consent. No witness has testified to a single dishonest or dishonorable act on his part.

The committee submit to the House the following resolution:

Resolved, That Charles Naylor was duly elected a member of the House of Representatives for the twenty-sixth Congress, from the third congressional district in Pennsylvania.

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In the House Mr. Rives offered the subjoined resolution when the case came for consideration :

Resolved, That the Speaker of this house be requested to issue a subpœna duces tecum to Samuel Hart, esq., prothonotary of the court of common pleas for the city and county of Philadelphia, directing the said Samuel Hart, esq., to appear personally, or by deputy, before this house, at 1 o'clock p. m. on Monday, the 18th instant, with the election returns and other papers on file in his office, relating to the congressional election in the third congressional district in the State of Pennsylvania in 1838, there to be examined in evidence in the case of contested election now pending between C. J. Ingersoll and Charles Naylor, from the said congressional district.

Objection was made, and the majority report was adopted by the House, after listening to the arguments of the contestant and the sitting member, January 15, 1841.

No report was made in this case, but the facts are set forth in the memorial subjoined:

The undersigned, citizens and legal voters in the eighth congressional representative district in the State of Maine, ask leave to represent:

That on the 15th day of October, in the year of our Lord eighteen hundred and forty, the governor of Maine issued his warrant to the selectmen of the several towns of the counties of Hancock and Washington, and which compose said district, to notify the legal voters of said towns to assemble on Monday, the 2d day of November then next, to give in their votes to them for a representative to the Congress of the United States, and to make due return of the votes so received to the secretary of state.

That, on the 26th day of December last, a report in council was made, declaring that, in that election, the whole number of votes from said district was ten thousand three hundred and eighty-four; necessary for a choice, five thousand one hundred and ninety-three; that Joshua A. Lowell had five thousand one hundred and ninety-four, and was elected; whereupon the governor caused a certificate of such election, under the broad seal of the State, to be delivered to the said Joshua A. Lowell.

That it appears by the return from the town of Charlotte, in the county of Washington, now in the office of the secretary of state, and by said report in council, that Joshua A. Lowell had sixty-three votes, and that votes for no other person were returned or counted; but that it can be made to appear, by the testimony of the electors of said town, that many votes were given in for Joseph C. Noyes; and that by the records of said town it appears that the number of votes given in for said Noyes were twenty-nine, and those for Lowell were sixty-two; and that, if those votes had been returned and counted, said Lowell would not have been declared elected.

That the governor's warrant was directed to all of the towns in said district, and, by law, it ought to have been seasonably delivered to the selectmen of every town; yet it can be made to appear that said warrant was not seasonably delivered to the selectmen of the town of Dedham, in the county of Hancock, by reason whereof the inhabitants of that town were not required to, and did not, give in their votes for a representative on that day, which was contrary to the constitution and laws of the State of Maine.

That twelve votes, returned by the selectmen of Springfield as given by inhabitants of said district for Joseph C. Noyes, were improperly rejected by the council, and that votes for Joshua A. Lowell were received and returned by the assessors of Presqu'isle plantation from persons living out of the said district, and which were improperly counted in said report.

Wherefore, we respectfully request that inquiry may be made into the matters set forth in this remonstrance; and if it shall appear that Mr. Lowell did not receive a majority of all the legal votes given, or that all of the legal voters in said district were not duly notified to give in their votes at that election, that he may not be permitted to hold his seat in said House under said certificate, but that a vacancy be declared in this district.

The sitting member submitted the following reply to the memorial:

To the honorable Committee of Elections of the House of Representatives of the United States: GENTLEMEN: The remonstrance of George Hobbs, Ichabod R. Chadbourne, and sixteen others, against my right to a seat in said House, as representative from the district of Hancock and Washington, in the State of Maine- which remonstrance is not "addressed to the House," was not presented by the Speaker, or by a member in his place," and "a brief statement of the contents thereof made verbally by the introducer," and which, therefore, should not have been received and referred-is founded upon three grounds, namely:

First. An alleged error in the return of votes given in the town of Charlotte, in the county of Washington, of thirty votes.

Second. That twelve votes, given in the town of Springfield, by persons living within said district, for Joseph C. Noyes, were rejected by the governor and council, and the votes of persons residing without said district were received and counted at Presqu'isle plantation.

Third. That the warrant or precept from the governor, for the meeting to elect a member of Congress for said district, was never received by the inhabitants of the town of Dedham, in the county of Hancock, and no meeting of the inhabitants was called for the choice of representative, whereby the inhabitants of said town of Dedham were wholly disfranchised, contrary to the constitution and laws of the State.

The remonstrance of B. W. Hinkley, Thomas Robinson, and fifty-one others, is the same in substance as the first; and, in answering the allegations contained in the former, I shall necessarily answer those contained in the latter.

Before making a definite and formal answer to the allegations in said remonstrance, it may not be improper for me to state that the laws of Maine regulating the election of members of Congress require a majority of all the votes given by qualified electors, at the time, places, and in the manner therein prescribed, and returned, according to law, by the proper officers to the office of the secretary of state within thirty days next succeeding the election.

It is made the duty of the secretary of state to lay the returns so made before the governor and council, and it is the duty of the governor, "in case of an election for any district by a majority of votes returned from such district, forthwith to transmit to the person or persons so chosen a CERTIFICATE OF SUCH CHOICE, signed by the governor and countersigned by the secretary."

At the meeting on the second Monday in September, 1840, three candidates were voted for and no election was effected. In pursuance of law the governor ordered a second trial on the first Monday in November, then next and now past, being the time of the presidential election, and precepts were duly issued to the several towns and plantations in the district for that purpose, and the sheriff's of the respective counties seasonably transmitted the same to the selectmen of the several towns and the assessors of the several plantations within the district, according to law.

At the second trial there were also three candidates, namely: Hon. Jos. C. Noyes, Samuel Wheeler, esq., and myself.

The whole number of votes returned, as given in said district, was ten thousand three hundred and eighty-four, of which number I received five thousand one hundred and ninetyour, Mr. Noyes five thousand and fifty-one, Mr. Wheeler one hundred and thirty-three, and there were six scattering votes; by which it will be seen that I had a majority of four cotes

over all others. The returns were laid before the governor and council, and, there being an election, the governor, in accordance with the requisition of the law, transmitted to me a certificate of such choice, under the great seal of the State, signed by himself and countersigned by the secretary, which certificate I herewith submit and make a part of the case.

It is not contended that such certificate is conclusive evidence of the right of a member to a seat in the House, although it is prima facie evidence of that right. It may be rebutted and invalidated by legal and satisfactory proof that it was founded either upon fraud or error. But the burden of proof is upon those who contest the seat; and they ought to be required to produce clear, strong, and convincing evidence that the person holding under such certificate was not duly elected.

To the allegation that there was an erroneous or false return from the town of Charlotte, in the county of Washington, I answer, that I do not know, of my own knowledge, whether said allegation be true or untrue. The selectmen and clerk of said town, with whom I am not personally acquainted, sustain a fair reputation in the community, and are regarded as gentlemen of unimpeachable characters. That they committed an error or fraud of the kind alleged, in making the returns of votes, although possible, is highly improbable, and contrary to the natural and legal presumption; and I therefore deny the statement made by the remonstrants in relation to said pretended error or fraud in the returns of votes from said town. But if said alleged error were proved clearly and conclusively, I should still be entitled to the seat by a correction of the erroneous returns made against me, by a rejection of all the illegal votes given at the election, and an allowance of all the legal votes tendered by qualified electors, and rejected by the presiding officers.

Should the committee determine to go behind the certificate of election for the purpose of correcting errors made in my favor, it is presumed that they will also give me a fair and reasonable opportunity to prove the existence of errors made against me; that illegal votes were received and allowed against me, and legal votes tendered for me and rejected; and that they will cause a commission or some legal authority to be issued, to take depositions to prove these facts, and allow a sufficient length of time to procure the testimony. In which case, I believe that I can prove that the paper purporting to be a return of votes from Long Island plantation, in the county of Hancock, stating that a legal meeting was held in said plantation on said second day of November, and that Joseph C. Noyes received 23 votes, and making no mention of there being any votes for any other person, was not only illegal upon its face, the number of votes being in figures, and not written in words at length, as required by law, but was wholly untrue and erroneous in point of fact; that no such plantation was organized according to law, or had any legal existence; that no limits of such plantation were returned by the assessors to the secretary of state, and by him recorded, as required by law; that no names of the voters were returned, as required by law; and no assessors and clerk chosen and sworn, as required by law; but that the meeting, if any such were held, was called without law, by persons having no authority; and that said votes, if any such were given, were given by persons who were not qualified electors. Also, that the meeting at a place called Plantation Number Thirty-three, in said county of Hancock, from which there was a return made of six votes for Joseph C. Noyes, and one vote for myself, was wholly illegal, the same having been held two hours before the time at which it was notified to be held, the votes having been received and the people dispersed before the time arrived for opening said meeting; and that the votes were not received, sorted, counted, declared, and sealed up, in open plantation meeting, as required by law.

Also, that the town meeting in Machias Port, in the county of Washington, from which there were returned seventy-four votes for Joseph C. Noyes, one vote for Peter Talbot, and sixty-seven votes for myself, was wholly illegal, the same not having been notified or warned according to law, or in the manner legally agreed upon by the inhabitants of said town; one if not both of the notifications for said meeting, required by law and long established usage to be posted up, containing an article for a meeting to choose electors of President and Vice President, but none for the choice of a representative in Congress, whereby many qualified electors and legal voters, who would have attended said meeting and voted for me, if they had known of the same, were wholly disfranchised.

I believe I can also prove, if a reasonable time be allowed for that purpose, that a large number of persons, not qualified electors in said district, were permitted to vote in said election; and that their votes were received, counted, and allowed against me, to wit: the votes of aliens, being citizens of the British provinces: the votes of citizens of Massachusetts, of Connecticut, of New York, and other States; the votes of minors, under the age of twentyone years; of paupers, and persons under guardianship, and of non-residents, or persons who had not had their residence established, as required by the constitution of Maine, in the town or plantation where they were permitted to vote, for the three months next preceding the day of election.

I have not yet been able to ascertain the precise number of persons so disqualified who voted against me at said election; but, from the best information I could obtain, prior to my leaving home in May last, I am of the opinion that there were more than one hundred illegal votes received, counted, and allowed against me, at said election.

The laws of the United States do not provide for taking testimony to be used in cases of contested congressional elections; and the laws of Maine, while they provide for taking tes

timony to be used in cases of contested elections in the State legislature, are silent on the subject of contested elections in Congress. Testimony to be used in contested elections to Congress can therefore be taken in Maine only by the consent of parties, or by virtue of some power to be given to commissioners by the House itself. And I here repeat the notice which I gave to the committee, at their session on the first instant, that I shall object to all evidence heretofore taken, which has been or may be offered against my right to a seat in the House, as taken ex parte, without law and against law.

Should the committee consider it proper and expedient to make any examination beyond the certificate of election, I desire that capable, discreet, and judicious men may be appointed, in different parts of the district, with power to send for persons and papers, take depositions, and compel the attendance of witnesses before them for that purpose; and that a reasonable time be allowed for taking and returning said testimony.

To the allegation that twelve votes were given for Joseph C. Noyes in the town of Springfield, and rejected by the governor and council, I answer: That the town of Springfield is not within said congressional district, and never was within said district, but is within the county of Penobscot, in the congressional district of Penobscot and Somerset-a fact which is not mentioned in either of said remonstrances. It does not appear that said votes were given by qualified electors, and, in point of fact, they were not given by qualified electors. Ist. The persons giving the votes did not reside in an incorporated town, or organized plantation, or in an unincorporated place adjacent to an incorporated town within the district. They were not, therefore, qualified electors to vote for representative in Congress in any place. 2d. If they were qualified electors within the district, there is no law by which they could vote out of or beyond the limits of the district. 3d. There is no law authorizing the selectmen of Springfield, or any other officers of any city, town, or plantation, beyond the limits of the Hancock and Washington congressional district, to call meetings, to receive, sort, count, declare, seal up, and return votes for a representative in Congress to represent said district. 4th. No vacancy existed in the Penobscot and Somerset district, within which said town of Springfield lies. 5th. No precept was issued to the selectmen of Springfield, or any other town in said Penobscot and Somerset district, by the governor. 6th. No warrant was issued by the selectmen of Springfield for notifying a meeting to elect a member of Congress. 7th. No notice was given of a meeting in said town to elect a member of Congress. 8th. The meeting in said town was called for the choice of electors of President and Vice President, and for no other purpose. 9th. The whole proceeding on the part of the selectmen of Springfield was extra official and without law; and their certificate of votes for a member of Congress in another congressional district was entitled to no other consideration than a similar certificate from the same number of private individuals. Finally, there is no view of the subject in which said certificate could be regarded as competent evidence, and no principle on which votes so given could be received, counted, and allowed as legal.

To the allegation that the votes of persons residing without said district were received and counted at Presqu'isle plantation," I answer, that I believe the same to be untrue. If such votes were given, they should be rejected, and deducted from the votes of the candidate to whom they were given. The names of the persons who voted for member of Congress in said plantation were duly returned, and are now on file in the office of the secretary of state. If any person who did not reside within the district voted for member of Congress in said plantation, and voted for me, it can be easily shown by those who make the allegation. By the return of votes from said plantation, it appears that there were one hundred and nine votes given for electors of President and Vice President, and but one hundred and four votes given for member of Congress. The natural presumption is, therefore, that persons residing in the plantation, but not within the district, voted for electors of President and Vice Presi dent, as they could rightfully by law, but did not vote for member of Congress.

The remaining allegation, viz: that the warrant or precept for the town meeting on the second day of November was never received by the inhabitants of the town of Dedham, in the county of Hancock, and no meeting was held in said town for the choice of a representative in Congress, may or may not be true; but, if true, would not invalidate the election. A precept was duly issued by the governor, addressed to the selectmen of that town, which was received by the sheriff of the county, a gentleman of the highest integrity and of great purity of character, and was, according to law, transmitted seasonably, in the usual way, by him, to said selectmen; and I believe the same was duly received by said selectmen. If, however, they did not receive it in season to notify a meeting, it was probably in consequence of some accident or mistake on the part of the selectmen or other inhabitants of said town; and it is respectfully submitted, that no congressional election has ever been set aside, and ought never to be set aside, for an accidental omission in a single town, especially where the votes of such town would not change the result.

In conclusion, I remark that, from all the information I have been able to obtain in relation to the election, I do not entertain a doubt that I received a majority of the legal votes given by qualified electors in the district; that I had a majority of the votes legally returned to the office of the secretary of state; that I was entitled to the certificate of election, and am now the legal representative of said district in the Congress of the United States.

HOUSE OF REPRESENTATIVES, July 6, 1841.

J. A. LOWELL.

The Committee of Elections submitted the following resolution to the House: Resolved, That the Hon. Joshua A. Lowell is entitled to his seat as a member of the 27th Congress from the State of Maine.

The House agreed to the resolution without a division.

NOTE.-The only speech on this case was made by Mr. Randall, of Maine, and will be found in vol. 11, part 1, Cong. Globe.

TWENTY-SEVENTH CONGRESS, SECOND SESSION.

DAVID LEVY, of Florida Territory.

In this case it was alleged that the delegate (from Florida) was not a citizen of the United States. Although the evidence was not conclusive, the committee was of opinion that the spirit of the naturalization policy of the country had been fully satisfied. It was also held that the domicile of the father is the domicile of the son during the minority of the son, if the son be under the control and direction of the father. During the first session the committe reported against Mr. Levy, but upon a more thorough examination of the case, at a subsequent session, that decision was reversed. The final report only is given.

IN THE HOUSE OF REPRESENTATIVES,

MARCH 15, 1842.

MR. BARTON, from the Committee on Elections, to which the subject had been referred, submitted the following report:

That the objection made to the right of the delegate rests solely upon the allegation that he is not a citizen of the United States. His election by a due majority of the legal voters of Florida has not been disputed. They have examined the question raised with that care and scrutiny, and at the same time with that liberality, which was due to the interesting and important consequences involved, both as respects the delegate whose political relations with this country are brought into question, and the character of the nation and of this House for justice, and for the observance of that good faith in its national policy which is at once the duty and the ornament of civilized governments. For it will be perceived, in the course of the report, that the degree of credit which should be given to the hitherto recognized acts of certain public officers of the government, evidenced by their authenticated certificates, constitutes an important feature in the inquiry which has been committed to them; and though, in this particular instance, the satisfactory proof which has been made, by extrinsic evidence, of the fact intended to be certified to by those officers, has rendered a consideration of the effect of their acts by no means essential, yet it cannot escape observation that very important and delicate interests of a portion of the population of Florida may, at some time, become involved in litigation by the decision of the House.

After a mature consideration of the additional evidence that has been presented to them, taken in connexion with the testimony reported at a former session, the committee have been led to a conclusion the reverse of that to which they arrived upon that occasion.

In reporting this result, it is due to themselves to say that the merits of the case were not so fully exhibited in the testimony laid before the committee at that time, and that if the facts had been as fully understood then as now, the necessity of a review of the subject at this session might have been spared.

It is admitted by the delegate that he is not a native-born citizen of the United States. But it is in proof that he has lived in the United States from the early age of eight or nine years, has grown up in the belief that he was a